Walsh v. Table Rock Asphalt Const. Co.

• Citation: 522 S.W.2d 116
• Decision Date: 03 April 1975
• Docket Number: No. 9679,9679
• Parties: David Robert WALSH, a minor, by his next friend, Robert L. Walsh, Plaintiff-Appellant, v. TABLE ROCK ASPHALT CONSTRUCTION CO., a corporation, et al., Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 116

522 S.W.2d 116

David Robert WALSH, a minor, by his next friend, Robert L Walsh, Plaintiff-Appellant, v. TABLE ROCK ASPHALT CONSTRUCTION CO., a corporation, et al Defendants-Respondents.

No. 9679.

Missouri Court of Appeals, Springfield District.

April 3, 1975.

Donald E. Bonacker, Springfield, Robert S. Wiley, Crane, for plaintiff-appellant.

Clay Cantwell, Cantwell & Allman, Branson, Harold J. Fisher, David W. Ansley, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-respondents.

Before BILLINGS, C.J. and TITUS and FLANIGAN, JJ.

TITUS, Judge.

A loaded southbound dump truck owned by defendant Table Rock Asphalt Construction Co. (Table Rock) and driven by its employee, Donald Lee Hale, and a northbound automobile operated by the 17-year-old plaintiff collided head-on at a curve on Highway 13 in Stone County, Missouri. The impact occurred in front of the residence of Mrs. Merle Peterson which is located about four miles south of Reeds Spring and five miles north of Kimberling City. ¹ Injuries received by Hale caused his death eight hours after the accident. Plaintiff (by his next friend) sued Table Rock for personal injury damages. Following the addition of Hale's widow and minor children as parties defendant, the defendants counterclaimed for damages resulting from Hale's death. Defendants' combined counterclaim coupled Table Rock's subrogation rights under the workmen's compensation law (§ 287.150 RSMo 1969, V.A.M.S.) with the rights of Hale's widow and children for wrongful death as provided by § 537.080 at seq. RSMo 1969, V.A.M.S., effective on December 11, 1969, the date of the involved casualty. In a separate count, Table Rock counterclaimed for damages to its truck. Solution of liability in the cause reposed in determining which vehicle was on the wrong side of the road at the time of impact. The jury resolved this issue in favor of defendants who were awarded $50,000 for Hale's wrongful death; Table Rock's property damages were assessed at $5,500. Plaintiff appealed when his motion for judgment notwithstanding the verdict or for new trial was overruled.

The initial three points relied on by plaintiff upon this appeal relate to whether the trial court erred vel non in permitting defendants' witnesses to recount statements allegedly made by Hale at the accident scene. The statements, used testimonially by defendants, i.e., as utterances to evidence the truth of the matters asserted, were permitted in spite of some admitted trepidation on the part of the court nisi under what is rightly or wrongly termed in the texts and opinions as the res gestae.

Mrs. Peterson testified she was seated in the living room of her home 'at about 3:20 in the afternoon' when she heard the crash, jumped up and ran to the front porch. She saw the involved vehicles and the fact that the dump truck had upset in the east ditch across the road from her house and was burning. By the time she crossed the highway, two men were approaching the truck from a nearby house and they pulled Hale 'out of the fire.' According to Mrs. Peterson it 'looked like (Hale's) clothing was all afire. . . . He was moaning from pain and he never spoke a word while I was there.' Mrs. Peterson returned home to telephone for help and to get a blanket for covering Hale. She gave the blanket to Ronnie Rogers in her front room an estimated five to ten minutes after she heard the collision.

Wayne Jones was following Hale at a distance of about one mile. Behind him another mile and also driving a loaded dump truck was Ronnie Rogers. At the same time these two loaded trucks were southbound from Reeds Spring to Kimberling City, an empty dump truck was being driven northward by Lonnie Dean towards Reeds Spring for reloading. Coy Blevins, Table Rock's asphalt foreman, was at a motel in Kimberling City supervising the unloading of the dump trucks at that site. None of these men witnessed the accident.

Rogers estimated he arrived at the scene near 3:30 p.m., and that about ten minutes elapsed from the time of his arrival until he placed the blanket over Hale. It was while Rogers was taking the blanket to Hale that he saw Lonnie Dean 'go down there to Hale,' or, as Dean recounted, when he arrived 'I saw Ronnie Rogers comin' up the ditch line or at the bottom of the embankment with a blanket.' Jones stated that he believed he was at the accident scene ahead of Lonnie Dean and that Coy Blevins came to the scene 'ten, fifteen minutes after I arrived.'

Dean testified that within '(f)ifteen to 20 seconds, I guess,' after he arrived, he knelt down beside Hale. He observed that all of Hale's 'clothes were burned off of him, and he was black, like charcoal. And all of the hair was burned off of his body and the only thing he had on was a pair of insulated boots . . .. Entirely burned up, flesh--black flesh hanging in layers.' About 30 seconds after he knelt beside Hale, Dean stated that Hale 'said that he was scared he was goin' to swallow his tongue . . . then in just a little bit, I guess, he had got his tongue under control . . . and he said that she was goin' too fast to make the curve and lost control of the car and that he tried to get out of the way but couldn't.' When asked to relate what he observed 'in regard to whether or not (Hale) was excited,' Dean answered: 'He was excited about his tongue, but for a person in that condition he was calm.' ²

The statement which Wayne Jones heard Hale make was directed to Coy Blevins and, of course, was made after Blevins had arrived at the scene. By Jones' account, when the statement was made, Hale 'didn't seem to be excited to me' and he said 'Coy, I did all I could do and then they hit me.' Whether Jones and Blevins in their testimony undertook to repeat the same statement made by Hale is unclear. In any event, the testimony of Blevins was that Hale 'just told me the car came around on his side of the road and he couldn't get out of the way, and he was sorry.'

The statements reportedly made by Hale and repeated to the trial court and jury by witnesses Dean, Jones and Blevins, were said to have been uttered by Hale without his being questioned concerning the matter. The statements were admitted over numerous objections by plaintiff. Objections were made to all of the testimony concerning the statements because they were hearsay, were not made while Hale was excited, were not made immediately after the event before reflection, showed that Hale had reflected on facts and reached conclusions, and were opinions and conclusions of Hale and not statements of facts. The statements testified to by Dean and Blevins were additionally objected to because they were not in the exact words of Hale, and statements repeated by Jones and Blevins were also objectionable to plaintiff as they were not made spontaneously after the event.

Professor Wigmore (VI Wigmore on Evidence, 3rd Ed., § 1767, at p. 182) opines that the 'phrase 'res gestae' has long been not only entirely useless, but even positively harmful. It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere uttering of shibboleth. There are words enough to describe the rules of Evidence. Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.' And Judge Barrett, author of Meyers v. Smith, 300 S.W.2d 474 (Mo.1957), wrote (l.c. 477): '. . . the distinguished legal scholars have repeatedly pointed out, with complete unanimity, the fallacies and unsoundness of res gestae as a rule of evidence, or as an exception to the hearsay rule which excludes proof of 'extrajudicial utterances (only) when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.' . . . Nevertheless, Missouri's bench and bar, with rare notable exceptions . . . instead of candidly recognizing certain contemporaneous or spontaneous exclamations and utterances as a legitimate and basically sound exception to the hearsay rule . . . have stubbornly clung to the shibboleth of the meaningless Latin phrase. . . . But even the most convincing apologist for the (res gestae) doctrine is unable to reconcile even the leading Missouri cases, and vehemently objects to our attempts to combine Professor Wigmore's 'shock test' with res gestae, particularly in connection with post-accident utterances. Annotation 163 A.L.R. loc. cit. 52--53, 90, 140, 156.'

The password suggested by Professor Wigmore to gain testimonial entrance past the hearsay rule in cases of this character is 'Spontaneous Exclamations.' This exception to the hearsay rule 'is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts.' VI Wigmore...